Remmler v. Shenuit

• Decision Date: 12 February 1884
• Parties: JOHN B. REMMLER ET AL., Respondents, v. FRANZ SHENUIT, Appellant.
• Court: Missouri Court of Appeals

15 Mo.App. 192

JOHN B. REMMLER ET AL., Respondents,

v.FRANZ SHENUIT, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 12, 1884.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Reversed and remanded.

LOUIS GOTTSHALK, for the appellant: This being an action for assault, it abates on the death of defendant.--Rev. Stats. 1879, sects. 96 and 97; Stanley v. Vogel, 9 Mo. App. 98. And even after judgment and during appeal.-- Taney v. Edwards, 27 Texas, 224. The instruction given by the court on its own motion was erroneous, because it referred the jury to the pleadings, to ascertain the issues.-- Darsler v. Wixley, 32 Mo. 498; Mo. Coal Co. v. H. & St. J. R. Co., 35 Mo. 84; Corker v. Corker, 2 Mo. App. 458; Edelman v. St. Louis Transfer Co., 3 Mo. App. 505.

JOHN F. WIELANDY and T. H. PEABODY, for the respondents.BAKEWELL, J., delivered the opinion of court.

This is an action by husband and wife for damages for an indecent assault alleged to have been committed by defendant upon Mary Remmler, the wife of her co-plaintiff The petition alleges that, on a day named, defendant used obscene language to the plaintiff, Mary, solicited her to have sexual commerce with him, and, in the presence of her infant children, struck her, and with violence, attempted to drag her to a bed and to effect the purpose above named.

The answer was a general denial. There was a verdict and judgment for plaintiff for $2,000. A motion for new trial was sustained, unless plaintiff would remit $1,000 A remittitur for this sum was entered, and the motion for new tr al was overruled.

The plaintiff Mary testified that on a day in June, 1882, whilst her husband was absent from the city, defendant came to the house one morning to collect rent. Plaintiffs, at the time, resided in the house in question, which was owned by, and rented from, defendant. It was a one-story building with two rooms connected by a door, and with porches front and back, and a kitchen. Defendant solicited the witness, as alleged in the petition, and indecently assaulted her, following her from room to room, catching her in his arms, kissing her, and handling her person and her clothes in an indecent way. She did not cry out, because she did not wish to injure her good name. But she refused and resisted him, and endeavored to get rid of him. The defendant continued to annoy her from time to time, in this way, during about an hour, when she at last succeeded in pushing him out and locking the door. The witness is corroborated as to the statement that defendant kissed her and embraced her, and that he begged her to go into the front room with him, and that she resisted, by the testimony of one of her sons, a boy of eleven, who was present at the time with his younger brother, a boy of four years old.

Defendant testified that he went to the house on a morning in June, at the request of the plaintiff, to see about whitewashing. He said he stayed only a few minutes, and denied that anything improper took place between Mary and himself. Defendant introduced in his own behalf a physician and the proprietor of a Turkish bath establishment, who testified that his health was bad at the time of the alleged assault. The physician had been in constant attendance upon defendant for months, and continually, up to the date of the occurrence. Plaintiff had broken his hand six months before, and his right arm was stiff in consequence. He was intemperate in his habits and was suffering from indigestion. He was often confined to his bed. The physician testified that from his general knowledge of defendant's health, he considered him incapable of committing a rape at the time of the occurrence, and that the appetite could hardly exist in him. Testimony was introduced tending to prove that the character of defendant for truth and chastity was good, and testimony on the other hand, that his character in these respects was bad, and that he had, on two occasions, insulted and assaulted women. The testimony showed that there had been a quarrel between plaintiff Mary and defendant about rent; that he attached her furniture for rent, a day or two after the visit in question, and that she threatened to “fix him.” She saw his wife on the day of the alleged assault, and spoke pleasantly to her, without mentioning anything as to any...